Citation Nr: 0030544
Decision Date: 11/22/00 Archive Date: 12/01/00
DOCKET NO. 98-06 879 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the claim of service connection for right ear hearing
loss.
2. Entitlement to service connection for left ear hearing
loss.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
L. Cryan, Associate Counsel
INTRODUCTION
The veteran had active service from May 1979 to February
1981.
This case originally came before the Board of Veterans'
Appeals (Board) on appeal from an April 1997 rating decision
by the RO.
The case was remanded by the Board to the RO in August 1999
for additional development of the record.
(The issue of service connection for left ear hearing loss is
addressed in the Remand portion of this document.)
FINDING OF FACT
New evidence has been presented since the RO's September 1981
decision which bears directly and substantially on the
veteran's claim of service connection for right ear hearing
loss and is so significant that it must be considered in
order to fairly decide the merits of the claim.
CONCLUSION OF LAW
New and material evidence has been submitted since the
September 1981 decision to reopen the claim of service
connection for service connection for right ear hearing loss.
38 U.S.C.A. §§ 5108, 7105, 7104 (West 1991 & Supp. 2000); 38
C.F.R. §§ 3.104, 3.156 (1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran had active service from May 1979 to February
1981. Following his discharge from service, the veteran
filed a claim for service connection for right ear hearing
loss.
In a September 1981 decision, the RO denied entitlement to
service connection for right ear hearing loss based on a
finding that right ear hearing loss preexisted service and
was not aggravated therein as the slight change in the
veteran's hearing at discharge was a normal progression and
not due to aggravation in service. The veteran was provided
notice of his procedural and appellate rights; however he did
not perfect his appeal. The RO's September 1981 decision
denying service connection for right ear hearing loss is
final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104
(1999).
Thereafter, in April 1997, the RO denied his claim of service
connection for right ear hearing loss on the merits.
It is apparent that the RO reopened the veteran's previously
denied claim. However, the United States Court of Appeals
for Veterans Claims (Court) has made it clear that, even if
an RO makes an initial determination to reopen a claim, the
Board must still review the RO's preliminary decision in that
regard. Barnett v. Brown, 8 Vet. App. 1, 4 (1995).
In February 1998, the veteran submitted outpatient treatment
records showing audiometric testing from 1990 to 1997. These
records show current hearing loss disability according to
38 C.F.R. § 3.385 (1999).
In August 1999, the Board did not find the claim to be
reopened and remanded the issue back to the RO for a
determination of whether new and material evidence had been
submitted based on the holding in Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998). The RO determined that, in fact, no
new and material evidence had been presented and declined to
reopen the veteran's claim of service connection for right
ear hearing loss. The veteran timely appealed that
determination.
When a claim has been disallowed by the RO, it may not
thereafter be reopened unless new and material evidence is
submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R.
§ 3.104(a) (1999). The United States Court of Appeals for
Veterans Claims (Court) has indicated that the credibility of
the newly submitted evidence is presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). The last disallowance
of record is considered to be the last decision that finally
denied the claim, whether it was denied on a new and material
basis or on the merits. Evans v. Brown, 9 Vet.App. 273
(1996). In this case, the last final decision of record was
the RO's September 1981 decision.
The Board notes that the applicable regulation requires that
new and material evidence is evidence which has not been
previously submitted to agency decision makers which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant and
which, by itself, or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R. §
3.156(a) (1999); Hodge v. West, 155 F. 3d 1356 (Fed. Cir.
1998).
In this case, the evidence added to the record since the RO's
September 1981 decision consists of outpatient audiometric
testing as noted above which shows current hearing loss
disability pursuant to 38 C.F.R. § 3.385 (1999).
The Board finds that assuming the credibility of the recent
evidence as required by Justus, the veteran has submitted new
and material evidence.
Thus, this evidence is relevant and probative to the issue at
hand and is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156 (1999).
ORDER
As new and material evidence has been submitted to reopen the
claim of service connection for right ear hearing loss, the
appeal to this extent is allowed, subject to further action
as discussed hereinbelow.
REMAND
At the outset, the Board notes that new legislation (H.R.
4864) was recently passed which essentially eliminates the
"well-grounded" requirements and provides additional
guidelines in order to properly comply with VA's duty to
assist. As such, the RO must readjudicate the veteran's
claims pursuant to the new legislation.
Right Ear
In view of the above determination that the veteran's claim
is reopened, the RO, consistent with the principles set forth
in Bernard v. Brown, 4 Vet. App. 384 (1993), must be provided
an opportunity to further develop the record and conduct a de
novo review of the reopened claim, based on the evidence in
its entirety to decide the claim of service connection for
right ear hearing loss.
In deciding the veteran's claim on the merits, the RO must
comply with the duty to assist pursuant to the newly enacted
legislation as noted. In addition, the Board finds that a VA
audiological examination is necessary to determine the
current nature and likely etiology of the claimed hearing
loss.
Left Ear
With regard to the left ear, the service medical records
showed that audiometric testing during the veteran's
enlistment examination showed pure tone thresholds in
decibels in the left ear as follows: 20 dB at 500 Hz., 5 dB
at 1000 Hz., 5 dB at 2000 Hz., 25 dB at 3000 Hz., 20 dB at
4000 Hz., and 35 dB at 6000 Hz. The veteran was again
afforded audiometric testing during his separation
examination. At that time, the examination showed pure tone
thresholds in decibels in the left ear as follows: 10 dB at
500 Hz., 10 dB at 1000 Hz., 10 dB at 2000 Hz., 25 dB at 3000
Hz., 30 dB at 4000 Hz, and 25 dB at 6000 Hz. Thus, the
veteran's hearing acuity at 1000 Hz., 2000 Hz., and 4000 Hz.
was shown as worse while his hearing acuity at 500 and 6000
Hz was shown as better and his hearing at 3000 Hz was the
same.
The RO in April 1997 denied the veteran's claim for left ear
hearing loss on the basis that it was not well grounded as he
did not currently have a hearing loss in that ear which met
the criteria of 38 C.F.R. § 3.385 (1998).
Subsequently the veteran submitted post-service medical
records documenting audiometric testing from 1990 and 1997
that show that the veteran currently has a hearing disability
in accordance with the provisions of 38 C.F.R. § 3.385
(1998).
Subsequently the RO in the supplemental statement of the case
found that a left ear hearing loss was not incurred in
service. In the August 1999 remand, the Board found that in
view of Hensley v. Brown, 5 Vet. App. 155 (1993) an
audiometric examination and a medical opinion were needed.
The record reflects that such examination was scheduled, but
that the veteran failed to report and did not provide any
explanation or request to reschedule. The Board notes that
when a claimant fails to report for an examination scheduled
in conjunction with an original compensation claim, the claim
shall be rated based on the evidence of record. 38 C.F.R. §
3.655(b) (1999). However, in this case, since the Board
finds that an examination is necessary with regard to the
veteran's claim of service connection for right ear hearing
loss, that examination should also include a review as to the
veteran's left ear hearing loss.
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, the case is remanded to the RO for the following
action:
1. The RO should take appropriate steps
to contact the veteran in order to afford
another opportunity to provide medical
evidence that he has current hearing
disability due to disease or injury
incurred in or aggravated by service,
pursuant to H.R. 4864 - Veterans Claims
Assistance Act of 2000.
2. The veteran should be afforded an
audiometric examination to determine the
current nature and likely etiology of the
claimed bilateral hearing loss. All
indicated testing should be completed.
The claims file, to include all evidence
added to the record pursuant to this
REMAND, should be made available to the
examiner prior to the examination. Based
on his/her review of the case, the
examiner should offer an opinion as to
the likelihood that the veteran has
current hearing disability due to disease
or injury which was incurred in or
aggravated by service.
3. The RO should review the veteran's
claim for entitlement to service
connection for left and/or right ear
hearing loss taking into consideration
the newly enacted legislation. If the
action taken is adverse to the veteran,
he and his representative should be
furnished a supplemental statement of the
case that contains a summary of the
relevant evidence and a citation and
discussion of the applicable laws and
regulations and afforded an opportunity
to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if indicated. The veteran need take no action
until he is further informed, but he may furnish additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999). No inference should be drawn regarding
the final disposition of the claim as a result of this
action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals
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